Freedom of Information Act

Lisa Nandy Excerpts

Wednesday 14th March 2012 Westminster Hall

[Lisa Nandy (Wigan) (Lab)]

I requested this debate to seek clarification about a specific piece of Cabinet Office guidance that was apparently issued to the Department for Education last year to clarify its responsibilities under the Freedom of Information Act.

Ministers from both Departments—the Cabinet Office and the Department for Education—have refused to answer any of my parliamentary questions about the guidance, except to confirm that it was issued. However, this is a matter of pressing public importance about which I have sought answers for nearly eight months. There is evidence now in the public domain that the Secretary of State for Education and his advisers used personal e-mail accounts to discuss matters relating to the award of public money and the Building Schools for the Future programme.

Disclosure of those e-mails was refused because Ministers wrongly appeared to believe that the e-mails were not covered by the Freedom of Information Act. The Secretary of State has since told me, at a recent hearing of the Education Committee, that he believed that to be the case because of the specific Cabinet Office guidance that is the subject of today’s debate.

I will briefly summarise the background and say why the matter is of such pressing public importance that the guidance should be published without delay. In August and September last year, in the leaked e-mail obtained by The Guardian, the Secretary of State’s adviser told officials that he would no longer respond to inquiries on his official departmental e-mail address and urged them to do the same. At the time, Ministers in the Department appeared to believe that private e-mail addresses were not covered by the Freedom of Information Act.

Further e-mails were then revealed by the Financial Times that had been leaked to them by officials in the Department for Education. Those e-mails revealed that personal e-mail accounts had been used by the Secretary of State and by his advisers in relation to Government business. Requests were made for some of the leaked e-mails in question but those requests were refused. The Secretary of State told me in January at the Education Committee hearing that the decisions were taken clearly on the basis of guidance issued by the Cabinet Office. That guidance remains unpublished, may or may not have been written down and has since been discredited, hence my keenness to shine a spotlight on that mysterious guidance today. It apparently contradicts earlier guidance given to the Secretary of State for Education by his Department’s chief freedom of information officer, stating that personal e-mails were covered by the Act. The Information Commissioner also clarified that in December last year, but the Secretary of State confirmed to me that he had ignored both those pieces of guidance and preferred instead to rely on the mysterious piece of guidance apparently issued by the Cabinet Office.

I would like to know why the Cabinet Office is still refusing to publish the guidance given the Secretary of State’s constant references to it, its apparent centrality to decisions taken and the seriousness of the allegations that have arisen against the Department for Education. Will the Minister publish the guidance now, so that we can assess whether any attempt was made to evade the requirements of the Freedom of Information Act? The Minister for the Cabinet Office told me that he would not publish it due to a long-standing convention, but can the Minister tell me why he and his colleagues cannot even tell me in what form it was communicated? Surely there is no convention around that? Freedom of information requests suggest that the DFE holds a copy of the advice, but according to press and FOI queries to the Cabinet Office, it says that its guidance was, variously, not written down, or not held. Can the Minister explain this contradiction for me today?

[David Simpson (Upper Bann) (DUP)]

I congratulate the hon. Lady on securing the debate. She will be aware of the controversy about the whole aspect of freedom of information requests in recent months. Does she agree that the matter is not only about the case she is outlining, which is very interesting, but the whole aspect of the abuse of freedom of information, and its cost?

[Lisa Nandy]

I very much echo the hon. Gentleman’s comments; this kind of affair damages us all, which is why I am seeking answers today.

I would also like to understand how the situation could arise. That understanding is important if the commitment to transparency, which was made very clearly in the coalition agreement, is to have any meaning. Why was the guidance written by the Cabinet Office in the first place, given that the Department for Education’s chief freedom of information officer had already clearly communicated his view? Who requested the guidance? When was it communicated by the Cabinet Office? Was it sent only to the Department for Education? If not, has it now been revoked for every Department, given the extreme criticism of it by the Information Commissioner? In his recent ruling, he said:

“The DfE contends that the information is not held because the email in question is ‘political’. However, almost all the work of a special adviser, by definition, has a political dimension to one extent or another. Equally, the Secretary of State is a political figure…There is therefore an inevitable overlap between matters of party policy and government policy. To accept the DfE’s interpretation would be to, in effect, create a blanket exemption for communications between ministers and special advisers. In the Commissioner’s view the DfE has created an artificial distinction between ‘official’ information which is subject to the Act and ‘political’ information which is not.”

Did this interpretation, or description, of a blanket exemption from the Act arise directly from the guidance issued by the Cabinet Office? If so, can the Minister tell me how he, or officials in his Department, came to interpret the guidance in that way? Will he tell me who wrote it? Was that person aware that the DFE’s chief FOI officer had already issued contradictory advice? Did the person who wrote it have any discussions with the Information Commissioner, or indeed the Ministry of Justice, which holds overall responsibility for the Freedom of Information Act, before issuing it? Who was it sent to in the DFE? Did the Minister personally sign it off? If not, will he tell me who did?

I am seeking to understand how a situation can arise where the Cabinet Office’s guidance explicitly contradicts that of the DFE’s own chief FOI officer and the Information Commissioner, yet the Department is able to choose which guidance it wishes to follow. Does that not cause the Minister concern? Is it how the Government operate? Can Departments pick and choose different policy advice and guidance depending on which they prefer to follow? Does the Minister think it is acceptable that the Government are in the farcical situation where the DFE is apparently relying on guidance that the Information Commissioner has discredited, which is contradictory to the guidance issued by the Department itself, and which the Government still refuse to publish?

Less than two weeks ago, the Information Commissioner issued a ruling that the information withheld by the DFE amounted to departmental business and must be disclosed. The Secretary of State is currently considering whether to exercise his right to issue a refusal notice giving valid reasons for withholding it, as I understand. In the meantime, he still does not appear to have accepted the guidance of the Information Commissioner and his own Department that states clearly that those e-mails are covered by the FOI Act.

In January, I asked the Secretary of State a series of questions at a hearing of the Education Committee to clarify whether he or his advisers had ever used private e-mail accounts to conceal information from civil servants or the public that related to departmental business; whether he had ever directed civil servants not to answer FOI requests on specific issues; and what steps he was taking to prevent the deletion of private e-mails relating to Government business and deemed by the Information Commissioner to be covered by the FOI Act. It has since transpired that officials in the DFE repeatedly destroyed official Government records—130 e-mails, according to reports by the Financial Times. I have the transcript of the Secretary of State’s appearance before the Education Committee. I repeat that it is not clear, from his answers, whether he or his advisers sought to use, conceal, or delete those personal e-mails to evade the Act. What is clear is that the Secretary of State says that he was following Cabinet Office guidance in his actions.

There is an urgency to this matter, as it is unclear whether private e-mails relating to Government business are still being deleted. I asked the Secretary of State about that at the end of January at the Select Committee hearing, and he would not confirm whether that was or was not the case. Will the Minister please clarify whether that revised, updated guidance has been issued, and that, in light of the Information Commissioner’s ruling, the guidance has changed? Has revised guidance gone to every Department? If not, what is the delay? Given the clarity of the Information Commissioner’s statement, it seems extraordinary that that would not have happened. If it has not happened, does it mean that the Government are currently without guidance on the use of private e-mails and the FOI Act?

Does the Minister know whether the DFE has decided to fight the decision notice, and if so, on what grounds? Perhaps the Minister cannot answer that, but can he answer this: if the Secretary of State for Education decides to fight the decision notice from the Information Commissioner, will the Cabinet Office defer publishing new advice until the case is finalised? If so, that could mean that the FOI Act is effectively inactive and subject to a blanket exemption for a year. That is surely a broken commitment, given the prominent commitment to transparency in the coalition agreement. What is being done to ensure that this situation cannot happen again?

[Kevin Brennan (Cardiff West) (Lab)]

I apologise to my hon. Friend for missing the beginning of her remarks—the debate started earlier than expected. Would it not be a ludicrous situation if the Government tried to uphold the position that private e-mails are not covered by the Freedom of Information Act, since that would, in effect, allow the Government to create a government in parallel using private e-mail accounts to evade their responsibilities under the Act?

[Lisa Nandy]

Absolutely. Evidence has emerged in the press that that is exactly what has happened in this instance, which is why I am seeking to clear up the matter today.

There is another thing that does not, so far, stand up to scrutiny. The Department for Education’s initial response to the press reports was to say that only political e-mails were sent through private accounts. The Secretary of State subsequently repeated that claim to the Education Committee. If the Department genuinely believed the e-mails were not governmental, why did it ever seek advice on the applicability of the law to private e-mail accounts? Can the Minister shed any light on that? Did he or his officials have any conversations with the Department, the Secretary of State or his advisers about it? That is why it matters so much to so many of us in the Opposition. Not only do the e-mails relate to decisions of crucial public importance to young people and their families—not least about Building Schools for the Future—but they have created a situation that looks distinctly murky. That affects and discredits us all, and must be clarified urgently.

[Ian Mearns (Gateshead) (Lab)]

As a member of the Education Committee, I attended the hearing. Has my hon. Friend reflected on the fact that in attempting to answer, or not answer, her questions at that Committee hearing, and by evading a real answer to her questions, the Secretary of State, I am sorry to say, seemed to find some amusement in the whole matter? That is a very sad thing, given the time and effort that my hon. Friend has put just into trying to uncover the truth.

[Lisa Nandy]

Indeed; and also because of the significance to the people that we represent throughout the country of decisions that were made and discussed using private e-mail accounts.

I have been seeking answers for seven months and have not been able to get any. In that time, it has been alleged that Ministers repeatedly destroyed official Government correspondence and deliberately used private e-mail accounts to avoid the requirements of the Freedom of Information Act. They may still be doing so. The failure to answer questions about this matter makes a mockery of Parliament, the Freedom of Information Act and the commitment to open government.

I realise that Governments are reluctant to share information, sometimes for understandable reasons, but I share the Government’s view that transparency is crucial. In the words of the coalition agreement, they should

“throw open the doors of public bodies, to enable the public to hold politicians and public bodies to account. We also recognise that this will help to deliver better value for money in public spending.”

If that commitment is to have any meaning, frankly, Ministers must up their game. I should be grateful if the Minister would give a commitment today that the original guidance will be published, that in light of the Information Commissioner’s ruling, clear renewed guidance will be issued urgently across the Government regarding the application of the FOI Act to private e-mails, and that if he cannot answer all my questions, he makes a decent attempt to answer those he can, writes to me about the rest and no longer seeks to hide behind the much overused phrase, “long-standing convention.”

[The Parliamentary Secretary, Cabinet Office (Mr Nick Hurd)]

It is a pleasure to serve under your chairmanship for the first time, Dr McCrea.

I follow convention in congratulating the hon. Member for Wigan (Lisa Nandy) not just on securing the debate, but for the way that she presented her case. We served together quite happily, I think, when considering the Public Bodies Bill. I am not surprised that she has been pursuing this matter forensically for many months, through the Education Committee and this debate.

I will do my best to answer the questions that I can. The hon. Lady will know that I cannot answer them all; in fact, I cannot answer the majority and I cannot speak for the Secretary of State for Education. I am certainly not going to respond to allegations about any destruction of information or materials, because they remain just that.

[Lisa Nandy]

I am sorry to ask the Minister to give way so quickly. I have just handed him a list of questions for the Cabinet Office, to which I should be grateful for answers. If he cannot answer them today, I should be grateful if he looked into them and got back to me.

[Mr Hurd]

I am grateful for the hon. Lady’s clarification. I was wondering what the piece of paper that was thrust into my hand was. It is a long list of questions and we will do our best.

In some ways, the hon. Lady was challenging the Government on their important commitment to transparency and, because I feel proud of the Government’s direction of travel, it is important to put this debate in context by mentioning some things that we are doing to improve transparency, including in the Department for Education. The Secretary of State mentioned, in evidence to the Select Committee, increased transparency about schools performance.

Information is power and we are giving people more power. For example, the Government are now publishing details of ministerial, special adviser and permanent secretary meetings with external organisations; details of hospitality and gifts received by Ministers and special advisers; senior officials’ salaries; and detail on Government procurement card spend. We are also publishing information on many other items of public interest, such as hospital infection rates, crime maps—which have been an enormous success with the public, with more than 430 million hits since their launch—and data on general practitioners’ performance. More than 7,500 data sets have so far been published through the combined online information system on data.gov.uk, more than any other comparable transparency service in the world.

The information published enables people to see all Government expenditure, browsing by date, spender, recipient and amount. All Government contracts over £10,000 are to be published to ensure openness and fairness.

The whole Government accounts were published in November 2011 and each Department has published a business plan, setting out how it will achieve its reforms, how much money is being spent and what it is being spent on. Reports against these deliverables are published monthly on the No. 10 website.

Transparency does not just extend to central Government. For local authorities, there is increased local accountability and transparency of councils. We can see, down to the last £500, what is being spent in our name by our local authorities, including salaries, names, budgets and responsibilities of staff paid more than £58,200. There is detail on councillor allowances and expenses and we can see organisational charts, pay multiples, copies of contracts and tenders to businesses, which are important to the voluntary and community sector.

[Lisa Nandy]

Will the Minister give way?

[Mr Hurd]

The point that I am trying to make—I will give way after doing so—is that this level of transparency is unprecedented and today’s debate, which challenges the Government and questions our commitment to transparency in some ways, needs to be seen against this background. So much of the long list that I read is self-evidently good and in the public interest. Why did it not happen before? The hon. Lady and other Opposition Members may have an answer, since they were in power for 13 years.

[Lisa Nandy]

The Minister has read a long, impressive list of things that have been published under the Freedom of Information Act. Does he agree that it is extraordinary that guidance of such central importance to decisions made across the Government is not on that list? Will he commit to publishing it immediately?

[Mr Hurd]

I am getting to the meat of the debate, which raises important issues about freedom of information requests and private e-mails. That is a complex new matter.

[Mr Hurd]

The hon. Gentleman says it is waffle, but I am proud, because in less than two years we have achieved all that I mentioned—which is more than his party did in 13 years in power—in giving people information about what the state is doing in their name. I do not describe it as waffle; it is hard information that is in the public domain now.

This debate is about the use of private e-mails and their relation to the Freedom of Information Act. We have to recognise that this complex issue has been the subject, as the hon. Lady says, of a recent decision by the Information Commissioner, published on 2 March. In his decision notice, the Information Commissioner makes it clear that at the time the Department for Education received the FOI request, there was no guidance in existence. This was a new area that had, perhaps, not been anticipated. The commissioner acknowledges that the full implications of the FOI Act in relation to this issue may not have been well understood at the time. He states in his decision notice that he

“would say first of all that he acknowledges that this is a novel issue and one which may not have been anticipated when the Freedom of information Act was passed…Given the unique role played by special advisers it is not always easy to draw a clear line between official information held by a public authority and party political information.”

It is clear that the Information Commissioner’s decision notice raises important issues that the Government are taking seriously and considering.

For reasons that I am sure hon. Members will appreciate, a time period is set out in the FOI legislation within which the Government will consider whether to appeal or release the information. I cannot answer the hon. Lady’s question about whether any decision has been taken. The Government have 28 days from the date of the decision notice to decide whether to appeal. If there is no appeal, the Government have a further seven days to release the information or assert a relevant exemption. Therefore, I am sure that hon. Members will understand that it is not appropriate for me to comment on the decision while such consideration is under way.

The hon. Lady has asked me to make public the advice given by the Cabinet Office to the Department for Education on FOI and private e-mails. She asserted at the start of her speech that she had not received any answers on this, but in fact she has, although it is not necessarily the answer that she wants. In a written answer from the Minister for the Cabinet Office, she was informed that the Department will not publish any guidance on private e-mails and the Freedom of Information Act given to the Department for Education, because

“Information relating to internal discussion and advice is not normally disclosed.”—[Official Report, 6 February 2012; Vol. 540, c. 63W.]

That has been so for a long time and we will stick to that line, because the Government do not disclose what is effectively internal advice. Doing so would prejudice the conditions under which such advice was given. That is a long-standing convention, and it is entirely respectable for the Government to stand by it. Today’s debate has not changed my view and, I am sure, will not change the view of the Minister for the Cabinet Office and Paymaster General. We both believe, as Ministers before us have believed, that advice between officials and Ministers should remain confidential.

[Lisa Nandy]

Can the Minister tell us whether that is written down?

[Mr Hurd]

The hon. Lady intervenes from a sedentary position. The answer to that question is that we will not disclose the advice or the manner in which it was communicated—we would not normally disclose that, and we will not do so now.

The more substantive issue is what happens now, in that the Information Commissioner has given a view and the Government must respond. The hon. Lady asked when the Cabinet Office will publish its guidance. I have made it clear that the Government are considering the Information Commissioner’s recent decision notice and his guidance, published in December, and will publish their guidance as soon as it is ready, but the issues are complex and require detailed consideration. [Interruption.] The hon. Lady laughs, but we must get it right: the question is new, it is complex and it was not anticipated at the start—it needs to be got right. The Cabinet Office is doing that work, which is well under way. When our guidance is ready, it will be issued.

The debate is valid and raises important issues that the Government are considering and taking extremely seriously. I do not recognise what the hon. Member for Gateshead (Ian Mearns) said about the Secretary of State’s apparent flippancy in Committee—I read the transcript; I was not there—but, given that in that part of the inquiry he was being interviewed under Paxman-like conditions by the hon. Member for Wigan, his replies were serious and to the point. However, important issues, which we are taking seriously, have been raised and I ask hon. Members to allow consideration to take place in the appropriate way. Within the time frame set in tribunal rules, the Government will decide whether to appeal or to release the information originally requested, in response to the Information Commissioner’s decision notice of 2 March. The Government are also considering the guidance issued by the Information Commissioner in December on freedom of information and private e-mails, and the Cabinet Office will issue further guidance to Departments in due course.